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Comment: Scaling Back Zippo: The Downside to the Zippo Sliding Scale and Proposed Alternatives to Its Uses

Establishing personal jurisdiction is a fundamental step of
litigation in the adversarial system of the United States. The
rules outlining personal jurisdiction are changing as technology
and the requirements of the notice system evolve. The first real shift in personal jurisdiction analysis began mid-twentieth
century as corporations started physically invading foreign
territories through agents. The courts adjusted to this change by creating the minimum contacts test. A minimum contacts
analysis hinges on whether the defendant’s entry into the court’s jurisdiction was purposeful. Due process prevents courts from pulling a foreign defendant into court for a mere fortuitous entry into the forum.
The next shift is upon us with the development of the internet,
which presents a special problem because there are no state
boundaries in cyberspace. If there are no boundaries, how can
someone using the internet know when they have “entered” a new forum? Even with this new issue, due process principles must remain paramount in establishing personal jurisdiction. In response to technological advances, the federal judiciary began comparing new internet contacts to previously settled physical contacts, such as sending an agent into a state, to determine if it would be fair to obligate a foreign defendant to the forum. Later, in an attempt to simplify the process, judges created a new test to articulate repetitive principles consistently used in internet jurisdiction fact patterns: the Zippo sliding scale.

The Dark Side of Professional Baseball: The Fall of Barry Bonds

An employee decides to join a union to represent all members
of a designated unit to serve the interests of all members without hostility or discrimination, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct by their employer. If the group that is set out to protect the union decides randomly to pick and choose the employees it decides to represent, in essence it fraudulently defeats the purpose of unionizing. The professional baseball industry is one of the major businesses in the United States that began unionizing at the end of the nineteenth century. It was not until 1953, with the Major League Baseball Players Association (MLBPA), that a legitimate union was established in professional baseball. Every Major League Baseball player is awarded the rights of a union under the collective bargaining agreement (CBA). Some of the duties the MLBPA handles for the players are negotiating salaries, arbitrating grievances, ensuring the on-field safety of its players, controlling the license for Major League Baseball (MLB), and distributing licensing revenues. Every single baseball player in MLB is entitled to all of the union benefits offered by the MLBPA. If for some reason the player believes that the MLBPA is not acting in his best interest, the player may file a Duty of Fair Representation (DFR) claim against the MLBPA. For a union member to win on a DFR claim, he must prove that the “union’s conduct toward a member of the collective bargaining unit is . . . in bad faith.”

High School baseball, the NCAA, and Major League Baseball: ’’A Reality Show‘‘

While the title of this piece fits well within the context of the
Albany Government Law Review symposium, the addition of “A
Reality Show” does not, and certainly begs some explanation.
The facts are that “by day,” I am a law professor specializing in
constitutional law and federal courts. But for an extended period of time, “by night,” so to speak, I assisted/represented a variety of amateur high school and college baseball players in regard to the potential, usually via the draft, of forsaking their amateur career to sign and play professional baseball with a Major League Baseball team.
So this is notice to the reader, though published in a scholarly
journal, and given my occupation, having previously published
scholarly pieces in such journals, this is not such a piece.
Befitting (hopefully) the intent of the Albany Government Law
Review symposium, this is an essay dedicated to the real world of amateurism and professional sport negotiations, which will
provide insight into how it works, how it happens, and the impact of the National Collegiate Athletic Association (NCAA) rules in the real world. Thus, this essay is in the nomenclature of present day media, if you will, “A Reality Show!”

’’Just Like Umpires:‘‘ Why Chief Justice Roberts Correctly Relied on Baseball to Describe the Supreme Court of the United States

During his Senate confirmation hearings, now Chief Justice
John G. Roberts initiated his testimony by noting: “Judges are
like umpires.” According to conservative commentator George F. Will, the author of the excellent book on baseball, Men at Work: The Craft of Baseball, the laws of baseball are shaped by
umpires. Chief Justice Roberts used a comparison enabling the
reference to be appreciated by many (those in black—the
Justices—and those in blue—the umpires). Because baseball is
the “National Pastime,” the comparison is useful to examine the
implications. Will provides a classic illustration of the finality of
the umpire’s ruling—describing a confrontation between a player
and an umpire:
Once when Babe Pinelli called Babe Ruth out on strikes, Ruth
made a populist argument. Ruth reasoned fallaciously (as
populists do) from raw numbers to moral weight: “There’s 40,000 people here who know that last one was a ball, tomato head.” Pinelli replied with the measured stateliness of John Marshall: “Maybe so, but mine is the only opinion that counts.”

Secret Sabermetrics: Trade Secret Protection in the Baseball Analytics Field

The law of trade secrets has been characterized as “the oldest
form of intellectual property protection,”and baseball is America’s oldest professional team sport. It is surprising, then, that so little has been written about the application of the former to the latter. This article seeks to fill at least part of that gap.

Billy Martin and Jurisprudence: Revisiting the Pine Tar Case

Almost thirty years ago, Hall-of-Famer George Brett
accomplished an unenviable feat: he hit a “game-losing home
run.” Acting upon an objection from the manager of the opposing team, the umpires called Brett “out” after he had smashed a home run that put his team ahead in the ninth inning. He was the final out of the contest. Brett had hit the ball with a bat that had been smeared with too much pine tar, and the umpires concluded that the rules of Major League Baseball dictated the penalty. However, after Brett’s team protested the decision, the American League president overruled the judgment of the umpires (the Brett Decision). This series of events (the Pine Tar Case) has come to be identified as a classic conflict between the letter of the law and the spirit of the law.

Re-examining Dave Parker’s 1979 contract negotiations is
valuable because it provides an excellent representative case
study reflecting the shifting power dynamic that was occurring
between the owners and players in Major League Baseball during a period of critical change within the league. In addition, there were a number of distinctive facets to the contract itself, as well as several unique aspects related to the performance of the contract by the parties, that have given the contract great
historical significance and make it a compelling topic for review
and analysis.
This article is unique in that it addresses all the issues related
to Parker’s 1979 contract, from the negotiations and formation of the contract, to the various legal issues related to the parties’
performance under the contract. Also, this article provides a
distinctive approach of the subject by relying heavily upon source documents, such as original court records, the player contract that was executed by the parties and approved by the league, correspondence between the principle players involved in the contract negotiation and formation, and official team and league internal communications. Because prior published accounts related to this topic tended to rely mostly on secondary or tertiary sources, those versions sometimes contained factual inaccuracies, which in turn may have resulted in misleading conclusions in certain cicumstances. One of the main contributions of this article is the presentation of accurate information from reliable source documents on the various legal issues related to Parker’s 1979 contract. In particular, this article primarily focuses on the unique nature of Parker’s deferred compensation scheme, and the contractual implications of his use of cocaine.

From Flood to Free Agency: The Messersmith-McNally Arbitration Reconsidered

On December 23, 1975, a three-member arbitration panel
chaired, by neutral arbitrator Peter Seitz, ruled by a two-to-one
vote that Los Angeles Dodgers pitcher Andy Messersmith and
Baltimore Orioles pitcher Dave McNally were “free agents” who
could negotiate with any major league club for their future
services. That decision overturned professional baseball’s
“reserve system” that, in its various manifestations over the years since the origins of baseball as an organized sport in the late nineteenth century, had bound a player for the duration of his career to the first team that signed him to a contract.
The outcome of the arbitration turned on the construction of
paragraph 10(a) of the Uniform Player’s Contract (Paragraph
10(a)). The provision, which was included in players’ contracts
since 1947, permitted a ball club to renew its existing executed
contract with a player “for the period of one year on the same
terms” in the event a player did not sign a new contract for the
upcoming season by a specified deadline. In initiating the
arbitration, the Major League Baseball Players Association
(MLBPA), on behalf of Messersmith and McNally, contended that
having not signed new contracts for the 1975 season and instead having played out the “renewal” year, the pitchers were entitled to be adjudged “free agents” since the renewed contract was limited to “the period of one year.” The position of the ball clubs was that when Messersmith’s and McNally’s contracts were renewed prior to the 1975 season, the renewal “for the period of one year on the same terms” included renewal of the renewal right itself, thereby effectuating a continuing right to the player’s services for future seasons.

Public Financing of Green Cathedrals

Sports is no longer simply a business; it is a big business.
Moreover, as a business, it is still growing financially and is still
far from reaching its maturation point. Much of the present
financial growth is tied to leveraging existing technologies and
devising new ones. Participants in the business of sports
aggressively pursue alternative sources of revenue in an effort to drive earnings.
Traditionally, revenue platforms in the sports sector consist of: (1) gate revenues for live sporting events; (2) rights fees paid by broadcast and cable television networks and TV stations to cover those events; (3) merchandising, which includes the selling of products with team and/or player logos; (4) sponsorships, which include naming rights and payments to have a product associated with a team or league; (5) actual team ownership; and (6) concessions.
More recently, other revenue streams such as from the
internet, satellite, or mobile phone subscriptions to sports events or programming are pushing sports toward programming content designed as a means to secure greater revenue. Participants in the business of sports are looking at various angles to make money. Among these participants are state and local governments seeking to generate revenue either directly or indirectly through maintaining and attracting professional sports franchises.

Take Me Out to the Hearing: Major League Baseball Players before Congress

The U.S. Congress has a long history with the game of
baseball. The first congressional hearing mentioning baseball
was the 1921 impeachment investigation of baseball
commissioner and Judge Kenesaw Mountain Landis. A year
later, the Supreme Court’s decision in Federal Baseball Club v.
National League exempted baseball from federal antitrust laws,
giving Congress its primary justification to hold oversight
hearings on the sport.
As Congress has exercised its authority to hold these oversight
hearings, it has regularly used that authority to call Major
League Baseball players as witnesses at its hearings. At least
forty-eight different major league players have testified at thirtyeight separate hearings for a total of seventy appearances. The subjects of testimony have included South Africa’s apartheid policies, drug sentencing guidelines, the fitness of a nominee for the Supreme Court, and the reserve clause. These appearances include then-active and former players; a player who played 3,026 games (Stan Musial) and a player who played only seventeen (Cy Block); folk heroes (Mickey Mantle) and convicted felons (Willie Aikens). By far the most common player to be called before Congress—not surprisingly given his status as a player, public figure, and civil rights icon—was Jackie Robinson, who appeared nine times over twenty-one years. Jim Bunning, David Cone, Joe Garagiola, and Robin Roberts each testified three times.

Arthur Soden’s Legacy: The Origins and Early History of Baseball’s Reserve System

For nearly one hundred years from its creation by an
ownership group in 1879 until a decision in 1975 by an
arbitration panel concerning the contractual status of pitchers
Dave McNally and Andy Messersmith, baseball’s reserve system
was the foundation of organized baseball’s relationship with its
players. The interlocking combination of agreements in a
player’s contract that constituted the reserve system effectively
tied that particular athlete to one team unless that team decided
to trade or release the player. The system worked to both depress salaries and discipline players who might otherwise abandon their contracts seeking higher salaries from a different team.

On March 1, 2011, Commissioner Bud Selig named me Major
League Baseball’s official historian. In mid-month he announced my major duty over the next two years: to chair a special Baseball Origins Committee. Among its eleven panelists are four topdrawer baseball scholars and seven baseball-loving individuals
who are also broadly concerned with history: Ken Burns, Jane
Leavy, George F. Will, Doris Kearns Goodwin, Steve Hirdt, Len
Coleman, and the commissioner himself.

Introduction: Early Baseball and the Urban Political Machine

The nineteenth century in America was a time of explosive
population growth, remarkable technological change, and a
disastrous civil war. At the same time, in this period of upheaval the men and women of this country created a uniquely American culture. European immigration and domestic migration dramatically increased the population density of urban centers. The Industrial Revolution added a manufacturing sector to an essentially agrarian economy and American-made goods became available to the world. Completing the business left unfinished at the founding of the nation, the Civil War solidified a union of states at a significant cost. More than 2 percent of the population, 620,000 lives, were lost on the nation’s battlefields.

Foreword

On April 11, 2011, the Albany Government Law Review hosted
its semi-annual spring symposium, Baseball and the Law:
America’s National Pastime. Following the daylong event, we
collected scholarship concerning all facets of the sport from the
some of the most noted and thoughtful commentators.
The result is a twice Murder’s Row of authorship on the
intersection of baseball and the law. The Baseball and the Law
issue is presented, more or less, in chronological order beginning, quite appropriately, with the origins of the sport and followed by the advent of the reserve system in 1879 during a meeting of National League owners in Buffalo, New York, following by its ultimate demise nearly one century later. The articles continue with an examination of baseball’s first player to earn over a million dollars annually, in the late 1970s, which seems quaint when measured against the bulging, present-day contracts of sluggers like Alex Rodriguez and Albert Puljos, and a thoughtful examination of whether Barry Bonds was wronged by his union. Finally, the issue includes unique treatments of the role of agents of college athletes and the comparison of the roles of judges and umpires. Also included in the issue is a student-written comment about the growing split among the circuits regarding personal jurisdiction analysis in internet commence and the resulting tension on the Due Process Clause.